Making wine less like mad cows, more like L.L. Bean

ROB DEFORD and daughter, Lilly, 17, rose at 4:30 a.m. yesterday, caught the train to Washington and lined up, in the drizzle, to hear oral arguments at the Supreme Court.

Deford, proprietor of Baltimore County's Boordy Vineyards, isn't usually a forensic groupie, but then the Supreme Court doesn't usually scrutinize the grape-crushing trade.

In May, the court agreed to decide whether Delaware, New York, Massachusetts and dozens of other states could keep blocking Boordy and other vintners from shipping wine directly to their residents. Yesterday, eight of nine justices heard the arguments.

"For small wineries across the country, this is a big day," said Deford, who with his daughter just made it into the gallery before it filled up. "We've been talking about this in our industry for 10 years or more, and this is the day when it finally came to fruition."

The case involves grand, opposing constitutional principles, which we'll get to. But it distills down to whether wine should be classified with explosives and mad cows, which states can bar or restrict at their borders, or L.L. Bean boots and YMCA Elmo dolls, which they can't.

As interstate commerce litigation goes, it has attracted unusual gawking. That's partly because of the product's glamour and cultural associations. (The robed ones even made wine jokes, according to Deford. "It was far more amusing than I thought it would be." )

Partly it's the pizazz of the conservative legal talent.

"It's so exciting," said Kevin Atticks, director of the Association of Maryland Wineries. "I mean, Kenneth Starr is representing the wine industry. It evokes all kinds of passion and drama."

Former Whitewater prosecutor Starr represents vineyards opposing limits on interstate sales. Former Supreme Court nominee Robert H. Bork represents wholesalers who would be bypassed by direct consumer sales and who favor the status quo.

But maybe attention is also drawn by the spectacle of draconian restrictions on a common consumer product when trade barriers are falling worldwide.

Marylanders can gamble away thousands in the Cayman Islands with a few clicks on a Web site. Should it really be a state felony for someone to have a nice bottle of Susan Constant Red shipped from Virginia's Williamsburg Winery to his house in Baltimore?

For customers it's a matter of free choice.

For winemakers, especially smaller ones such as Boordy, it's a matter of access to markets and substantially expanding growth opportunities. Boordy gets calls all the time from people who want its wine through the mail, Deford said.

"These consumers may have been tourists in Maryland," he said. "They may have been former residents of Maryland. They may have come across our Web site or read a review, and they could be anywhere in the country. It is frustrating to turn down a market."

But the law says he has to. Under the 21st Amendment, which ended Prohibition in 1933, states have the power to regulate alcohol sales. Using that power, about two dozen prohibit or sharply restrict direct consumer purchase of wine, beer or booze from out-of-state suppliers.

(My favorite is Delaware, which has no problem luring people from a half-dozen nearby states to play its slots and buy its tax-free merchandise. But it won't let Delawareans send a few dollars out of state for a bottle of mail-order Chardonnay.)

Some states - California, Illinois, Minnesota and others - permit direct shipments to wine customers. But often they allow only shipments from states with similar laws, leaving vintners in Maryland and other bluenose jurisdictions out of the loop. Boordy turns down all mail-order business, Deford said.

Opposing the 21st Amendment is another part of the Constitution, the Commerce Clause, which has been interpreted to mean that states can't interfere with interstate commerce. (As noted, there are exceptions. States can block commerce in heroin or snakehead fish, for example.)

This is the argument the winemakers are making.

"There is no alternative for us but to look beyond Maryland's borders," Deford said. "I believe that by making more wine more accessible to all people, everyone will ultimately benefit."